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Pollard-El v. Johnson

United States District Court, E.D. Missouri, Eastern Division

May 9, 2019

BYRON POLLARD-El, Jr., Plaintiff,
v.
BOBBY JOHNSON, et al., Defendants.

          MEMORANDUM AND ORDER

          CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the complaint filed by plaintiff Byron Pollard-El, Jr. Although plaintiff has filed a motion to proceed in forma pauperis, he has failed to file an accompanying prison account statement. Plaintiff will be required to do so within thirty (30) days of the date of this Memorandum and Order in order for the Court to verify his pauper status. Additionally, plaintiff will be required to file an amended complaint on a court-form for the reasons set forth below.

         28 U.S.C. § 1915(b)(1)

         Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma pauperis is required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his prison account to pay the entire fee, the Court must assess and, when funds exist, collect an initial partial filing fee of 20 percent of the greater of (1) the average monthly deposits in the prisoner's account, or (2) the average monthly balance in the prisoner's account for the prior six-month period. After payment of the initial partial filing fee, the prisoner is required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. 28 U.S.C. § 1915(b)(2). The agency having custody of the prisoner will forward these monthly payments to the Clerk of Court each time the amount in the prisoner's account exceeds $10.00, until the filing fee is fully paid. Id.

         Although plaintiff has filed a motion to proceed in forma pauperis he has failed to file a prison account statement. Plaintiff will be required to file a prison account statement within thirty (30) days of the date of this Memorandum and Order. If plaintiff fails to do so, and alternatively, if he fails to pay the full $400 filing fee in that same time period, his complaint will be subject to dismissal.

         Legal Standard on Initial Review

         Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To state a claim for relief under § 1983, a complaint must plead more than “legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.” Id. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. Determining whether a complaint states a plausible claim for relief is a context-specific task that requires the reviewing court to, inter alia, draw upon judicial experience and common sense. Id. at 679.

         Pro se complaints are to be liberally construed. Estelle v. Gamble, 429 U.S. 97, 106 (1976). However, they still must allege sufficient facts to support the claims alleged. Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir. 2004); see also Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980) (even pro se complaints are required to allege facts which, if true, state a claim for relief as a matter of law). Federal courts are not required to “assume facts that are not alleged, just because an additional factual allegation would have formed a stronger complaint.” Stone, 364 F.3d at 914-15. In addition, giving a pro se complaint the benefit of a liberal construction does not mean that procedural rules in ordinary civil litigation must be interpreted so as to excuse mistakes by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).

         The Complaint

         Plaintiff is an inmate at Eastern Reception, Diagnostic and Correctional Center (“ERDCC”). He brings this action pursuant to 42 U.S.C. § 1983 asserting claims against the following defendants: Bobby Johnson; Nathan Waibl; Justin Thomas; Corizon, Inc.; Unknown Bingham; and Lonnie Smallen. Plaintiff does not indicate the capacities under which he is suing defendants.

         Plaintiff asserts that he was “beaten” by defendant Unknown Bingham on April 6, 2018. He claims he was punched in the face repeatedly, and his head was slammed on the ground. Plaintiff states that the “other officers” failed to stop” and “made no attempt” to stop “him.” Plaintiff also claims that “an officer” wrote a false violation report, but he fails to identify which officer wrote the report, and he alleges that “staff” refused to allow him to present documentary evidence during his violation hearing. Plaintiff states that “medical staff” failed to document his injuries, and he asserts that “staff” assigned him to a cell with a large hole in the floor knowing it was unsafe to live in.

         Plaintiff seeks compensatory damages in this action.

         Discussion

         Plaintiff's claims are conclusory and do not specifically allege the unlawful behavior of a specific person or persons he believes to have acted wrongfully. Even pro se plaintiffs are required to allege facts in support of their claims, and I will not assume facts that are not alleged. Stone, 364 F.3d at 914-15. Moreover, he has not connected each purported violation with a named defendant who had personal knowledge of the violation and or someone who was directly responsible for the action that harmed plaintiff.[1] And as to plaintiff's medical claim, he has not alleged that he had a serious medical condition that was known to a specific defendant that required medical treatment but that he was denied treatment at the time it was immediately necessary.[2] Last, in order to state a condition of confinement ...


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